President Obama’s decision to release photographs of prisoner abuse will imperil our nation and its defenders.

By Andrew C. McCarthy —
May 12, 2009

American soldiers, American civilians, and other innocent people are going to die because Pres. Barack Obama wants to release photographs of prisoner abuse. Note: I said, “wants to release” — not “has to release,” or “is being forced to release,” or “will comply with court orders by releasing.” The photos, quite likely thousands of them, will be released because the president wants them released. Any other description of the situation is a dodge.

If President Obama wanted to refrain from releasing these photos in order to protect the military forces he commands or promote the security of Americans — his two highest obligations as president — he could do so by simply issuing an executive order. The applicable statute expressly allows for it, just as it provides for Congress — now in the firm control of the president and his party — to withhold the photos from disclosure. Instead, Obama and congressional Democrats are choosing to release the photos.

They are making that choice fully aware that it will cost lives. It is a sedulous Democrat talking-point, repeated most recently by Carl Levin, the Senate Armed Services chairman and a key Obama ally, that the revelations of prisoner abuse at Abu Ghraib inspired new terrorist recruits, caused American combat casualties, and made the United States more vulnerable to terrorist attack. This has long been Obama’s own position. It is a charge he made throughout the 2008 campaign, and it is one he repeated just a month ago in his Strasbourg speech: “When we saw what happened in Abu Ghraib, that wasn’t good for our security — that was a recruitment tool for terrorism. Humiliating people is never a good strategy to battle terrorism.”

It was not by reading news reports about prisoner abuse that “we saw what happened at Abu Ghraib.” It was by viewing the graphic photos: the images broadcast incessantly throughout the world, used simultaneously by al-Qaeda and by the anti-war Left to condemn the United States military, the United States government, and the American people themselves for the aberrational depravity of an unrepresentative handful of rogue prison guards. Obama has always been very much a part of the anti-war Left. That’s why he can make the risible assertion that “humiliating people” was anyone’s “strategy to battle terrorism.” That is why he said at a CNN campaign forum last June that “Abu Ghraib is something that all of us should be ashamed for, even if you were supportive of a war.”

Obama doesn’t have the political nerve to end the war. But he is slowly (or, as he’d no doubt put it, pragmatically) strangling the war effort. A critical part of the antiwar project is to make Americans feel ashamed of defending ourselves, inducing us to accept the European view that actions taken in our defense — even those that have protected us from additional jihadist strikes — tarnish our image, stir our enemies, and put us in grave danger. Better to go back to seeing terrorism as a law-enforcement concern, this theory holds, and accept the occasional terrorist strike as a cost of managing, rather than fighting, this scourge. What we lose in dead Americans, the argument goes, will be more than compensated for in increased international prestige — if not for the United States, at least for Barack Obama. Discrediting the war effort itself is what the release of these photos is about.

The ACLU, the anti-war crowd’s Old Reliable, has argued for years that release of the photos would “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” and thus that their “disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

These contentions are absurd. No one is claiming that there has been no prisoner abuse outside Abu Ghraib. It has long been reported that there were many other allegations — although the bipartisan 2004 Schlessinger Panel, in rejecting claims of systematic prisoner abuse, reported that less than one-tenth of 1 percent of 50,000 detainees in the War on Terror had viable abuse claims, an extraordinarily low percentage by historical standards. Many officials have already been held accountable, investigations are continuing, and there is no need to broadcast the photos for that process to go forward.

Exposing these photos to scrutiny, moreover, would not “help the public understand the scope and scale of prisoner abuse.” It would be just as likely to achieve the opposite. A photograph captures an instant, not a pattern. It is capable of being grossly manipulated: We could have no photos and still have widespread abuse, or a million photos and still have relatively little. The Left knows this quite well, and that explains why the mainstream media stopped broadcasting video of the 9/11 attacks (and other terrorist strikes) for fear of tarring all Muslims with the acts of a few. The photos at issue won’t tell us anything significant about prisoner abuse, and they may very well serve to distort reality. What seems certain is that they will get Americans killed; again, that is Obama’s own stated view, which, as Front Page magazine’s Ben Johnson recounts, is echoed not only by Sen. Levin but by Sens. John Kerry and John McCain, among others.

The administration claims its hands are tied because of a ruling last September by the Second Circuit Court of Appeals in New York. That is untrue. The Second Circuit decision rejected the Defense Department’s argument that disclosure was foreclosed by an exemption from the Freedom of Information Act (FOIA) for “law enforcement records” that “could reasonably be expected to endanger the life or physical safety of any individual.” The three-judge panel reasoned that while the term “any individual” could be broadly construed, it should not cover a class of millions of people, such as all the members of our armed forces who might be jeopardized. To do so, the panel said, would nullify what it took to be the higher purpose of FOIA: to let Americans “know what their government is up to.”

This conclusion was far from indisputable. The country, after all, is currently involved in a defensive war authorized by Congress — an imperative one might have thought took precedence over other legislative goals, such as those of the Freedom of Information Act. Given the stakes, the Bush administration sought a rehearing in the case before the full Second Circuit. By the time the court denied that application on March 12, however, the Obama administration had taken over. With Attorney General Eric Holder now at the helm, the Justice Department decided not to appeal the ruling to the Supreme Court. As a Pentagon spokesman toldStars and Stripes, “A decision was made by the Justice Department, in collaboration with us, that we should comply with the lower court’s ruling.”

Obviously, that was a bad call. An administration that made its top priority the protection of our armed forces and the American people would have taken this case as far as it could — which would very likely have pushed a final ruling well into next year. This administration’s failure to do so underscores its anti-war predisposition — as well as the deeply conflicted posture of the Holder Justice Department, many of whose top officials (including the attorney general himself) come from firms that have spent the last several years representing America’s enemies in court.

But contrary to what the administration would have Americans believe, the Second Circuit ruling is not the end of the story. FOIA also contains an exemption from disclosure for matters that are “specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy.” That exemption was not at issue in the Second Circuit case.

Thus, if President Obama wanted to keep these photos from being exploited by America’s enemies, all he would need to do is issue an executive order sealing them, based on a finding (which could be drawn from public statements he has already made) that their release would imperil the national defense — as well as frustrate ongoing American foreign-policy efforts in Pakistan, Afghanistan, Iraq, the Palestinian territories, and elsewhere in the Muslim Middle East.

Some will say that the president won’t do that because he does not want to anger the anti-war Left, a significant part of his base. In truth, the president is the anti-war Left. He won’t issue an executive order of this kind because he wants the photos revealed. It is important to understand that disclosure here is not an inevitable outcome. It is a choice. It doesn’t have to happen unless Obama wants it to happen.

The same can be said of the Democratic Congress. The Second Circuit ruling that Holder chose not to appeal did not say the Constitution mandated public dissemination of photos that will imperil Americans. It said FOIA required it. FOIA is just a statute. Congress writes the statutes and it can amend the statutes. Democrats control both houses, as well as the White House. If they wanted to bar disclosure of the photos, they could do that tomorrow. And with the overwhelming support they’d get from Republicans, they could do it with veto-proof margins. But legislative override would likely be irrelevant: Obama wouldn’t dare veto a non-disclosure bill — he wants disclosure, but only if he can snooker people into believing it wasn’t his choice.

Congress would not even need to amend FOIA. As it now stands, FOIA provides for nondisclosure of matters “specifically exempted from disclosure by statute.” All Congress has to do is enact a law categorically barring disclosure of these particular photos, or barring photos that could endanger the lives of American service personnel and civilians for the duration of this war against an enemy already known to exploit such photos for propaganda purposes. Such a rule doesn’t have to last forever — only until the end of the war. And if that seems too long, Congress could stipulate that the question of disclosure will be revisited every few years.

The leading congressional Democrats are tribunes of the anti-war Left. They have not enacted such a law because, like Obama, they want the photos disclosed — or because they are too craven to defy their base. But it is important for Americans to understand: The Democrats are making a conscious choice that will imperil our nation and its defenders.

Last week, the Republican minority proposed legislation (the Keep Terrorists out of America Act) to pressure President Obama into reversing his plan to transfer trained jihadists into the United States. They are to be commended for an effective tactic. But it’s not enough. Where is the No Disclosure of Enemy Propaganda Material Act? Unless something is done, the photos that will cause American soldiers, American civilians, and other innocent people to die will be released in two weeks. Time is running out — the danger is not.